Buffer zone lawsuit dismissed; pro-life witness continues; abortion facilities may attempt to enforce “zones”


In a March 31 order, federal judge Joseph Laplante dismissed the Reddy v. Foster case that challenged a New Hampshire law permitting anti-First Amendment “buffer zones” outside abortion facilities. Laplante ruled that the pro-life plaintiffs lacked standing to bring suit, since no zones have been posted since passage of the law in 2014 and therefore no one has been prosecuted to any extent.

Photo by Beth Scaer
Photo by Beth Scaer

Peaceful pro-life witness not otherwise proscribed on public sidewalks and rights-of-way outside abortion facilities in New Hampshire remains protected where no buffer zone is posted. No First Amendment rights were struck down in Laplante’s decision.

A bill to repeal the buffer zone law will get a Senate committee hearing at 2 p.m. on Tuesday, April 5, in room 101 of the Legislative Office Building in Concord.

The buffer zone law permits abortion facility operators to post a zone around their facilities of up to 25 feet within which no demonstration, including silent prayer, may take place. The 25-foot zone may include public sidewalks and rights-of-way.

Court: no enforcement = no grounds for litigation

The buffer zone law has been on hold since shortly after the Reddy v. Foster case was filed.  Abortion facility operators, together with the New Hampshire Attorney General and other defendants, either agreed to refrain from enforcement or were ordered by the court to refrain, pending resolution of the case. With the March 31 dismissal, those agreements are dissolved and abortion facility managers are free to post buffer zones.

Laplante’s decision to dismiss the case did not reach the point of addressing First Amendment implications of the law. He found that plaintiffs’ lack of standing to bring the lawsuit was sufficient grounds for dismissal, regardless of other legal issues. “Before the Act can be enforced…one of the clinics must demarcate a zone…[and post] tje appropriate signage,” he noted in his ruling.

Laplante left open the possibility of future litigation in the event any New Hampshire abortion facility establishes a buffer zone. “Once a zone is in place,” wrote Laplante, “[plaintiffs] and others in their position would still have an opportunity to seek injunctive relief….At that time the court would have before it sufficient factual developments to conduct a proper McCullen type of review.”

McCullen v. Coakley was the unanimous 2014 U.S. Supreme Court decision that struck down a Massachusetts buffer zone law.

What now? Some personal observations, not to be confused with legal advice

I am not a lawyer, and this should not be construed as legal advice. Read that line twice. …but as one of many pro-life Granite Staters, this is how I see the dismissal of Reddy v. Foster. Any attorney who finds a serious error here needs to point it out to me.

  • Abortion facilities are still places where peaceful pro-life witness is essential. Lives at all stages are at stake.
  • Peaceful and otherwise legal pro-life witness on public property is not affected around any abortion facility that does not have a posted buffer zone.
  • Where there IS a zone, peaceful witness might or might not trigger enforcement; that’s strictly up to the abortion facility staff.
  • If police are called, and a law enforcement official asks the pro-life witness to knock it off, the pro-life witness who chooses noncompliance runs the risk of being cited for violation of the buffer zone law (among other things). A written warning is supposed to come before a citation. The citation would be for a violation-level offense and carry a minimum fine of $100.
  • By the way, one of the conditions in the Statement of Peace for 40 Days for Life is cooperation with local authorities.
  • A pro-life witness who finds her or his First Amendment rights chilled by enforcement of the buffer zone law, as opposed to the threat of enforcement, should run – not walk – to the nearest attorney with experience in defending the First Amendment rights of pro-life people.
  • I have thought since the law was passed that it’s a good idea for pro-life witnesses to work in pairs. I’m even more convinced of that now. I may have to give up solo 7 a.m. vigil hours during 40 Days for Life.  It makes sense to have multiple pro-life witnesses who can attest to the circumstances surrounding any event or challenge.
  • The biblical admonition to be shrewd as serpents and simple as doves is apt. Be careful as well as prayerful out there.

 

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